Twenty-Nine Palms Enterprises Corp. v. Bardos

210 Cal. App. 4th 1435, 149 Cal. Rptr. 3d 52, 2012 Cal. App. LEXIS 1173
CourtCalifornia Court of Appeal
DecidedOctober 11, 2012
DocketNo. E051769
StatusPublished
Cited by63 cases

This text of 210 Cal. App. 4th 1435 (Twenty-Nine Palms Enterprises Corp. v. Bardos) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Twenty-Nine Palms Enterprises Corp. v. Bardos, 210 Cal. App. 4th 1435, 149 Cal. Rptr. 3d 52, 2012 Cal. App. LEXIS 1173 (Cal. Ct. App. 2012).

Opinion

Opinion

MILLER, J.

Plaintiff and respondent Twenty-Nine Palms Enterprises Corporation (Palms), a tribal corporation, sued Cadmus Construction Co. (Cad-mus), a sole proprietorship wholly owned and operated by defendant and appellant Paul Bardos (Bardos) (1) to recover money paid to Cadmus, because it alleged Cadmus was an unlicensed contractor (Bus. & Prof. Code, § 7031)1 and (2) for unfair competition, in that Cadmus allegedly performed work requiring a contractor’s license while unlicensed (§ 17200). The trial court granted summary judgment in favor of Palms.

Cadmus raises six contentions on appeal. First, Cadmus asserts section 7031 does not apply to contracts made with a tribal corporation for work done on tribal land. Second, Cadmus asserts the trial court erred by sustaining Palms’s objections to Cadmus’s evidence “en masse.” Third, Cadmus asserts there is a triable issue of fact as to whether it held a valid license. Fourth, Cadmus contends that if it was not properly licensed, then there is a triable issue of fact as to whether it satisfies the substantial compliance requirements. (§ 7031, subd. (e).) Fifth, Cadmus contends Palms is estopped from seeking recovery pursuant to the unlicensed contractor statute (§ 7031). We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

A. Complaint

The facts in this part are taken from Palms’s complaint. Twenty-Nine Palms Band of Mission Indians (the tribe) is a federally recognized Indian tribe. The tribe is sovereign, residing on its reservation in the Coachella area. Palms is a tribal corporation wholly owned and operated by the tribe. (25 U.S.C. § 477.) Palms owns and operates the Spotlight 29 Casino (the casino). Palms and the casino are on the tribe’s land in the Coachella area.

[1438]*1438On or about March 12, 2007, Cadmus submitted a written bid proposal to construct a temporary access road and parking lot for the casino. The bid was in the amount of $751,995. Palms accepted Cadmus’s bid. Cadmus performed the work on the tribe’s land, where the casino is located. Cadmus finished its work and was paid in full around May 2007; Palms paid Cadmus $751,995. Cadmus first received its contractor’s license in October 2007. When Cadmus entered into the construction contract and performed the construction work, it was not a licensed contractor. Palms sought to have Cadmus disgorge the $751,995.

B. Answer

In Cadmus’s answer it denied the allegations and raised 14 affirmative defenses, such as substantial compliance, consent, waiver, and unclean hands. Cadmus’s answer is primarily composed of legal assertions, without facts.

C. Motion for Summary Judgment

Palms filed a motion for summary judgment on April 1, 2010. Palms argued the undisputed evidence reflected Cadmus acted as a contractor, but was not licensed when it performed the construction work at the casino, and therefore, Palms should prevail and Cadmus should be required to disgorge the $751,995.

The declaration of Darrell Mike (Mike), a member of the Palms board of directors was attached to Palms’s motion for summary judgment Mike declared Palms contracted with Cadmus in March 2007 for construction work related to a temporary access road and parking lot. Mike stated, “A substantial portion of this work took place on an approximately 47 acre lot adjacent to the Tribe’s reservation (the ‘Adjacent Lot’).” Mike denied that the adjacent lot was ever part of the tribe’s federally approved reservation land. Mike believed Palms held a temporary easement over the adjacent lot.

Palms also lodged various exhibits in support of its motion for summary judgment. One of the exhibits was a transcript of Bardos’s deposition. In the deposition, Bardos stated Cadmus was a general contracting company, and in 2007 it was operating as a general contractor. Cadmus filed its fictitious business name statement with San Bernardino County on April 6, 2007. Cadmus entered into the contract with Palms on March 12, 2007. Bardos believed Cadmus completed its work around the end of June 2007. The State of California issued a contractor’s license to Cadmus on October 26, 2007 (license No. 905717). .

Cadmus has always been a sole proprietorship, and Bardos has always been the 100 percent owner. Bardos asserted that from April to October 2007 [1439]*1439Cadmus was operating under the contractor’s license issued to Bardos Construction, Inc. (BCI), (license No. 505220). In 1983, Bardos applied for a contractor’s license as an individual doing business as BCI. When asked if Bardos informed anyone at Palms that he was operating under BCI’s license, Bardos responded, “I had no obligation to do that. H] . . . [][] I didn’t need to. They had private investigators.”

Also lodged as an exhibit was the contract between Cadmus and “Spotlight 29 Casino.” Term No. 23 of the contract provided, “License: Pursuant to legal requirements, notice is hereby given that contractors are required by law to be licensed and are regulated by the Contractors State License Board. Any questions concerning a contractor may be referred to the Registrar of the Board [w]hose address is . . . .”

Other exhibits included invoices from Cadmus to Palms, and checks from Palms to Cadmus. A fictitious business name statement reflected Bardos filed for Cadmus’s fictitious business name on April 6, 2007. The application for Cadmus’s contractor’s license was dated June 25, 2007, and signed by Bardos. Cadmus’s contractor’s license reflected an issue date of October 26, 2007. An online printout related to BCI reflected it had an active class B general building contractor’s license, which was issued in February 1987.

D. Opposition to Motion for Summary Judgment

1. Declaration

In a declaration, Bardos asserted he had been a licensed general contractor in California since 1980. In February 2007, Palms hired Bardos to be its representative in regard to the construction of a parking structure near the casino. As the representative, Bardos would help Palms with the selection of architects and engineers; review completed plans; prepare schedules and budgets; interface with local officials to expedite the permit process; assist with drafting and negotiating contracts with contractors, subcontractors, or suppliers; inspect work as it progressed; and review contractor pay applications.

Bardos asserted that during his time as Palms’s constmction representative, he learned “the Tribe always took the position that California licensing and/or regulatory laws do not apply to the Tribe and/or work being performed on Tribal lands,” which was why local building inspectors did not inspect the construction work and Palms hired BCI to inspect the work.

In his declaration, Bardos explained that Worth Group had been hired as the general contractor for the parking structure project. Palms asked BCI to [1440]*1440prepare a bid for the temporary parking lot and access road, in order to replace Worth Group, which had prepared a bid $1 million higher than BCI’s bid.

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Cite This Page — Counsel Stack

Bluebook (online)
210 Cal. App. 4th 1435, 149 Cal. Rptr. 3d 52, 2012 Cal. App. LEXIS 1173, Counsel Stack Legal Research, https://law.counselstack.com/opinion/twenty-nine-palms-enterprises-corp-v-bardos-calctapp-2012.